Beatty v. City of St. Joseph

Gill, J.

— The plaintiff’s complaint is based on the following state of facts: Beatty owned two lots in a block bounded on the east by Eourth street and west by Third street. There is an alley running through the block from west to east, at right angles to Third and Eourth streets. Beatty’s lots front on said Fourth street, and lie north of the alley, and about eighty feet from the north line thereof. The defendant’s common council, by ordinance, authorized this alley to be graded “from the east line of Third street to the west line of Fourth street,” the work to be done acccording to the specifications on file in the office of the city engineer. Under these specifications, the contractor was required, under the direction of the city engineer, to construct approaches, by excavation or embankment, to all -intersecting streets, etc. When the work was done, the contractor did not stop at the west line *253 of Fourth street, but graded the alley across Fourth street, making a deep excavation therein, and then, to conform said street to this excavation, cut away the surface of Fourth street in front of plaintiff's property, and it was this that resulted in the alleged damages to plaintiff's property.

The trial court in effect held that, as the common council did not by ordinance authorize the grading of Fourth street, and in front of plaintiff's property, the city was not liable. The plaintiff brought the case here by appeal.

I. In its ruling the lower court was clearly correct.As we had occasion to state in a similar case, “St. Joseph is a city of the second class, and by the terms of its charter the authority to change the grade of its streets rests alone with the mayor and common council. This power, too, can only be exercised by ordinance, passed by the council and approved by the mayor. * * It is undoubtedly true that the defendant can only be held responsible for the acts of its officers, agents or servants in changing the grade of a street when such-change has been authorised by ordinance.” Gehling v. St. Joseph, 49 Mo. App. 430 , and cases cited.

Under the ordinance relied upon by plaintiff, neither the city engineer nor the contractor were authorized to disturb the surface of Fourth street, on which the plaintiff’s property fronted. The common council directed the alley to be graded no further east than to the west line of Fourth street, making therefrom an approach where the alley touched the west line of said street. But the change of surface in front of plaintiff’s lots was brought about by the unauthorized grading of the alley across Fourth street, and for this, the city was not responsible.

The judgment of the circuit court will be affirmed.

All concur.